Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Saturday, March 24, 2018

On the Internationalization of China's "New Era" Theory: Brief Thoughts on the UN Human Rights Council Resolution: "On promoting mutually beneficial cooperation in the field of human rights" (A/HRC/37/L.36)

The resolutions of the UN Human Rights Council rarely get much coverage. Sometimes they serve to articulate positions of various multilateral factions (always shifting) in the constant struggle for influence and the management of the international system in "mutually beneficial" ways--understood in the sense that such mutual benefit for all is evidenced by the work of the vanguard able to cobble together sufficient votes to make that point. Beyond the space where states play, civil society and the masses who must bear the consequences of the games that these masters play, these resolutions often than to serve as evidence of some already formed belief or other about the HRC and its predilections, or about the character and motives of those states that drive these resolutions.

Most of the time much of this is true enough--though such resolutions are critically important in developing a sense of the flows of power among factions of states as they seek to capture the control of the narrative of international discourse and more importantly the consequences of that discourse for law and norm making that can then be imposed on (or serve as an excuse for such imposition in bilateral relations) others.

Yet when a significant new player enters the arena it is worth taking a moment to pause and consider the character, motives and objectives of that new player in an already complex network. In that context, the UN Human Rights Resolution "On promoting mutually beneficial cooperation in the field of human rights" (A/HRC/37/L.36; 19 March 2018), sponsored by and reflecting an important new perspective of the People's Republic of China is worth considering in some detail. That resolution has been embraced and condemned by leading states and the press. Yet those reactions have uniformity missed the central important element of that resolution. Chinese internationalism is now fully engaged. Yet to understand the nature of that internationalism--and the new 4th Communist International it suggests--requires a better understanding of the development and focus of Chinese Communist "New Era" Thought that adds substantial meaning to the new operative language of "Socialist Human Rights" internationalized-- "mutually beneficial cooperation."

This post includes brief thoughts on the UN Human Rights Resolution "On promoting mutually beneficial cooperation in the field of human rights" (A/HRC/37/L.36; 19 March 2018), along with the text of Resolution A/HRC/37/L.36, the official summary of the proceedings culminating in its approval, and the Reuters reporting, Stephanie Nebehay, "U.S. and China clash at U.N. rights forum on Beijing text," Reuters 23 March 2018 (widely circulated).

Resolution A/HRC/37/L.36 appears at first blush fairly innocuous, even by the low standards of HRC practice. It starts with the usual reaffirmation of core international declarations and then recalls "all relevant human rights treaties" (whatever they may be--and again that may reference different "cocktails" of law depending on national willingness to adopt and embed such treaties into national law). It also concedes the universality, indivisibility, inter-relatedness and interdependence of human rights, all of which "must be treated in a fair and equal manner" (again, as we will be a judgment special in the context in which it might be made) and all of which derive from the dignity and worth of the individual human person who remains at the central subject of the human rights project. This archetypal human person is acknowledged to have as among her rights, that of "participating actively in the realization of those rights and freedoms" accorded to them by those who have taken the power to establish them.

It then starts taking an interesting turn. It recalls prior resolutions "on international cooperation in the field of human rights" and then reaffirms (although that is a bit of a stretch here even by the usual principles of looseness in these sorts of writings) that the principles of universality, impartiality, objectivity, and non-selectivity in the work of the HRC will be guided by "constructive international dialogue and cooperation." To that end, the key part of the resolution acknowledges "the important role that mutually beneficial cooperation plays among all relevant stakeholders in promoting and protecting all human rights in an increasingly interrelated world."

From there the Resolution turns to the consequences of embracing the principle of "mutually beneficial cooperation" in the development of the architecture of human rights in the HRC. The first is to tie the principle of mutually beneficial cooperation to the objective of "capacity building and technical cooperation" as an expression of human rights in law and norm. It thus recognizes in a very specific and fractionalized way (read the next phrase carefully): "the importance of technical assistance and capacity-building provided in consultation with, and with the consent of, the States concerned in promoting mutually beneficial cooperation in the field of human rights." The second is to tie human rights to strengthening the "capacity of States to comply with their human rights obligations for the benefit of all human beings." The concept of "benefit for all human beings" is ambiguous and remains undefined, though it might mean anything from empowering states to project their human rights affirming power outbound, to the shaping of an internal human rights apparatus on the basis of global benefit. The third is to transpose the managerial techniques of big data management to the business of human rights with national characteristics "establishing a cooperative mechanism based on objective and reliable information and on interactive dialogue." The fourth, to the end of "mutually beneficial cooperation" the initial objective, in the service of the more abstract principles of human rights recognized, are dialogue and the fostering of international relations. Dialogue in the field of human rights is to be be held among "religions, cultures and civilizations," an odd aggroupment in a document heavily tilted toward the sovereign majesty of states and the individual holder of human rights. Intentional relations takes up that lacuna by aiming for the "building a community of shared future for human beings, in which human rights are enjoyed by all."

It is on this critical ideological foundation that the Resolution then quite briefly gets to the substance of its business in five short bursts of directions for implementation both well pointed and ambiguously directed.

1. Calls upon all States to uphold multilateralism and to work together to promote mutually beneficial cooperation in the field of human rights, and encourages other stakeholders, including international and regional organizations and non-governmental organizations, to contribute actively to this endeavour;

2. Reiterates the important role of technical assistance and capacity-building in promoting and protecting human rights, calls upon States to strengthen human rights technical assistance and capacity-building through mutually beneficial cooperation, upon the request of and in accordance with the priorities set by the States concerned, and welcomes in this regard North-South, South-South and triangular cooperation;

3. Emphasizes the importance of the universal periodic review as a mechanism based on cooperation and constructive dialogue with the objective of, inter alia, improving the situation of human rights on the ground and promoting the fulfilment of the human rights obligations and commitments undertaken by States, and calls upon all States and relevant stakeholders to participate constructively in it;

4. Invites relevant United Nations human rights mechanisms and procedures to continue to pay attention to the importance of mutually beneficial cooperation in promoting and protecting all human rights;

5. Requests the Human Rights Council Advisory Committee to conduct a study on the role of technical assistance and capacity-building in fostering mutually beneficial cooperation in promoting and protecting human rights, and to submit a report thereon to the Human Rights Council before its forty-third session.

When reduced to its essence there appears to be little here worth wasting even the space already devoted to the understanding of Resolution A/HRC/37/L.36. Yet the essence of the resolution, to embed the notion of "mutually beneficial cooperation" among states into the heart of the norms and practices of international human rights, sparked substantial resistance among Western states and their allies and an equally muscular defense by the remnants of the old Soviet block and the children of giants that once commanded the now ancient "Third World" block. Reading the instruments produced a welling of nostalgia, a recherche du temps perdus, that would transport one old enough to remember back to the 1970s--its sights, smells, styles and sensibilities (Action on Resolution on Promoting Mutually Beneficial Cooperation in the Field of Human Rights).

But most states which abstained from, or in the case of the United States which voted against, the Resolution, understood the centrality of the new concepts of "mutually beneficial cooperation" and the identity between technical assistance/capacity building and human rights, as a substantial transformation (potentially) of the narrative (and thus the course) of the human rights project. Ironically, they appeared to fail to understand the source and importance of the key terms that they found troubling. While much of the discussion pro and con was centered on the interpretation and consequences of the resolution within the self-reflexive narrative structures of international discussion of human rights within the normative hothouse that is the HRC, the most important element of the resolution was its attempt, now successful to transform, and transform radically, the foundation of the human rights narrative, from that constructed from out of the post WWII vision of a de-Nazified and demilitarized world, to that built on the vision of Socialist progress through the development of productive forces under the leadership of those tasked with the responsibility for the collective good through which the welfare of the individual might be measured.

To understand the meaning of the concept of "mutually beneficial cooperation" from the perspective of China, it is necessary to consider in some detail the development of the concept in the pronouncements of Xi Jinping and their translation into core elements of Chinese foreign policy (tied of course intimately with crucial objectives of national public policy). Those, in turn, represent an effort, over the course of the last several years, to expand and refine Mao Zedong's well known "Five Principles of Peaceful Co-Existence," of equality, mutual benefit and mutual respect for territorial integrity and sovereignty. Those principles, expanded and refined, now make their way into the core of approaches to the project of human rights in Resolution A/HRC/37/L.36.

Xi Jinping first appeared to unveil the concept of "mutually beneficial cooperation" in a keynote speech ay the 5th BRICS Leaders Meeting, Durban South Africa on March 27, 2013 (Xi Jinping, "Work Hand in Hand for Common Development", in Xi Jinping, The Governance of China 355-359 (Beijing: Foreign Languages Press, 2014)).

No matter how international situations may unfold, we should stay committed to pursuing peaceful development and mutually beneficial cooperation. What we need is peace and cooperation, not war and confrontation. While pursuing our own interests, we should also accommodate the legitimate concerns of other countries. . . . We should respect the right of all countries to independently choose their social systems and development paths and the diversity of civilizations (Ibid., 356).

The two elements of mutually beneficial cooperation were these: (1) "the internal affairs of a country should be handled by its own people," and (2) "international affairs should be managed by all countries through consultation." (Ibid). These are the key concepts that are embedded as well in the Resolution. Moreover, mutually beneficial cooperation was strongly tied to the principles of socialist modernization--economic development and the advancement of the objectives of creating a moderately prosperous socialist state. Thus the tie between the principle of mutually beneficial cooperation and capacity building and technical assistance. And as well the tie between development and cooperation ("we BRICS countries should not seek our own development , but also work for the common development of all countries." (Ibid)). And all of this, of course is tied to the central focus on Chinese development (Ibid., 358-359). "Our development endeavor is a cooperative one, as we will work for common development, carry out economic and technological cooperation with all other countries on the basis of equality and mutual benefit, and promote our own development and the common development of all countries through cooperation." (Ibid., 358).

The theme of cooperation was again raised by Xi Jinping in a speech delivered at the Boao Forum for Asia Annual Conference, April 7, 2013 (Xi Jinping, "A Better Future for Asia and the World," in Xi Jinping, The Governance of China 360-367 (Beijing: Foreign Languages Press, 2014)). Cooperation was grounded on sustainability as an animating concept, but with Chinese characteristics. It was expressed in four key points. The first was common development (Ibid., 362). The second was upholding peace to secure common development (Ibid., 363). The third was to boost cooperation as an effective vehicle for enhancing common development (Ibid., 363-364).

As we often say in China, a single flower does not make spring, while a hundred flowers in full blossom bring spring to the garden. . . While pursuing its own interests, a country should respect the legitimate concerns of others. In pursuing its own development a country should promote the common development of all." (Ibid., 363).

The fourth was to remain "open and inclusive to broaden the scope for enhancing common development." (Ibid., 364).

The ocean is vast because it is fed by hundreds of rivers. We should respect the right of a country to independently choose its social system and development path, ease distrust and misgivings, and turn the diversity of our world and differences among countries into dynamism and momentum." (Ibid.).

Mutuality of self-interest rather than a universal vision are at the base of this perspective: "China cannot develop itself in isolation from the rest of Asia and the world. On their part, the rest of Asia and the world cannot enjoy prosperity without China." (Ibid., 364). Here this is the basis for mutually beneficial cooperation--dependence and development through which as a consequence human rights will be developed as well.

These notions were not to be understood within the narratives of human rights and liberal globalization, but rather through the ideological lens of the Chinese 18th Congress of its Communist Party (Ibid., 364-67). "As a Chinese proverb goes, "Neighbors wish each other well, just as loved ones do to each other." China will continue to promote friendship and partnership with its neighbors, strengthen friendly ties, intensify mutually beneficial cooperation and ensure that its development will bring even greater gains to its neighbors."(Ibid., 365). Here, then, is the core of the concept of mutually beneficial cooperation--now to be applied to frame the narrative of human rights, a Leninist and internationalist view of the centrality of mutual development toward the development of productive forces at the center of the human rights project.

These ideas were further refined in Xi Jinping's comments to the G20 Leaders Summit, September 5, 2013. (Xi Jinping, "Jointly Maintain and Develop an Open World Economy," in Xi Jinping, The Governance of China 368-372 (Beijing: Foreign Languages Press, 2014)). Here the connection between the foundations of the Chinese Communist Party Basic Line of socialist modernization through an "opening up strategy"provided the core of the internationalized principal of mutually beneficial cooperation. Building on the "single flower" proverb, Xi Jinping noted:

China will continue to adhere to the opening up strategy of mutual benefit, continue to streamline the structures of investment and trade, improve relevant laws and regulations, create a legal environment of fair operations for foreign companies in China, and resolve trade disputes with relevant countries through consultations." (Ibid., 372). .

I have little doubt that anyone there other than the Chinese delegates had even the slightest idea about the deep connections between evolving core Marxist Leninist theory, its implementation through socialist development and the connection of both to the mechanisms of mutual cooperation and consultation at the heart of this portion of the speech.

Xi Jinping's conception of mutually beneficial cooperation was again refined in his Speech at the 13th meeting of the Council of Heads of Member States of the Shanghai Cooperation Organization in Bishkek, September 13, 2013. (Xi Jinping, "Carry Forward the 'Shanghai Spirit' and Promote Common Development, in Xi Jinping, The Governance of China 373-377 (Beijing: Foreign Languages Press, 2014)). The core of the remarks sought to develop the concepts of the "Shanghai Spirit."

The essence of the 'Shanghai Spirit' is: mutual trust, mutual benefit, equality, cooperation, respect for diverse civilizations, and seeking common development. It was proposed by China's then President Jiang Zemin in June 2001 at the founding meeting of the Shanghai Cooperation Organization, and was written into the Declaration on the establishment of the Shanghai Cooperation Organization." (Ibid., 377, n. 1).

For Xi Jinping the essence of the Shanghai Spirit was centered on the objectives to "build up trust and conduct mutually beneficial cooperation based on equality, consultation, mutual understanding and mutual accommodation,." (Ibid., 374 (emphasis supplied)). To that end, practical cooperation was emphasized. For Shanghai Cooperation Organization members that revolved around what eventually would become the One Belt One Road Initiative (then the Silk Road Spirit, Ibid., 375-376).

And again. on October 7, 2013, in his speech at the APEC CEO Summit, Bali, Indonesia (Xi Jinping, "Work Together for a Better Asia Pacific," in Xi Jinping, The Governance of China 378-388 (Beijing: Foreign Languages Press, 2014)). the concepts of mutually beneficial cooperation, of the development of productive forces, and of the vanguard approach to national characteristics based internationalism was further refined. The challenge for the world, including the human rights of its people, was grounded in economic instability. But more than that, the entire economic order now found itself "in the middle of profound readjustment" which required "new drivers for growth." Those new drivers can be found, Xi Jinping asserted, with the economies (the political economies) of the Asia Pacific region. "To push for recovery in the sluggish world economy, economies in the Asia Pacific region should have the courage to do what has never been done before and build an open growth mode featuring innovation, interactive growth and converging interests." (Ibid., 378). Here is nicely laid out the direct connection between mutual benefit, capacity building and technical cooperation built on the foundations of economic growth which then indirectly augments the economic, social and cultural (human) rights of individuals. And again, for Xi Jinping, profundity lies in the Chinese classics: "A Chinese poem runs, 'When one doubts whether there is a way out from the endless mountains and rivers, one suddenly finds a village shaded in soft willows and bright flowers.'" (Ibid.). That village is China and its vanguard the ideology and the CPC Basic Line, now serving as a platform for multilateral internationalism under the leadership of the CPC line--the beginnings of Xi Jinping's construction of a Markets Marxism (e.g., here) based 4th Communist International. (Ibid., 379-381).

China is drawing up a master plan for the continuation of reform in all respects. Our general approach is to press ahead with reform in the economic, political, cultural, social and ecological fields in a balanced manner. . . . We will attract foreign investment and encourage companies to 'go global' at the same time, and enhance international economic cooperation. . . . We will make overall planning for bilateral, multilateral, regional and sub-regional opening up and cooperation, and accelerate the implementation of the FTA strategy and promote communication and exchanges with our neighboring countries." (Ibid., 382-383).

Here is the template for "mutually beneficial cooperation" emerging from the economic field, internationalized and then applied to the management of that cooperation for multilateral socialist modernization on its object, the refinement of the domestic and international project of human rights with national characteristics.

With respect to its economics and power balance ramifications, Mr. Xi was quite conscious of its challenge to the traditional organization of power and the world order. "We are aware that the reform is a profound revolution that involves the adjustment of major interests and improvement of systems and institutions in various fields." (Ibid., 383). And it is from these internal revolutionary refinements of Chinese Leninism and the implementation of CPC leadership for the purpose of moving forward the project of the establishment of a Communist society that the leadership of international efforts consonant with those profoundly important objectives is developed. That development is grounded in notions of solidarity and cooperation toward shared national goals under the leadership of a vanguard with legitimately valid constitution. "China will firmly uphold regional peace and stability, and help cement the foundations for a mutually beneficial situation in the Asia Pacific region." (Ibid., 384). Harmony, peace and common prosperity are to serve as the basis of the mutual benefit of such cooperation. (Ibid).

That mutually beneficial cooperation in the Asia Pacific region is to be built around the leadership of China. "China will commit itself to building a cross-Pacific regional cooperation framework that benefits all parties." (Ibid., 385). And indeed, that template also serves the One Belt One Road Initiative as well. Mutual benefit cooperation grounded in development of productive forces producing better quality of life for the masses that itself is a marker of solicitude for the economic, social and cultural rights of individuals from out of which the legitimacy of the structures of civil and political life that produced those benefits is legitimated. A brilliant refinement of Leninist principles embedded within contemporary international architectures.

This was nicely elaborated in Mr. Xi's then vision for the Asia Pacific region (Ibid., 386-388). That vision was grounded in common development, open development, innovation driven development, interactive growth (based on shared interests and a common destiny). To that end, Xi Jinping announced his proposal for what became the Asia Infrastructure and Investment Bank (Ibid., 387). More importantly, Mr. Xi then signaled the intention to leverage those structures into the international arena "to undertake more international responsibilities." (Ibid).

Lastly Xi Jinping's speech at the 4th Summit of the Conference on Interaction and Confidence Building Measures in Asia, May 21, 2014 (Xi Jinping, "New Approach for Asian Security Cooperation," in Xi Jinping, The Governance of China 389-396 (Beijing: Foreign Languages Press, 2014)) adds the last element to the principles that now find their way into the core of the approach to international human rights in Resolution A/HRC/37/L.36.We start with another metaphorical window on core thinking: "As a Chinese saying goes, 'A wise man changes his way as circumstances change; a knowledgeable person alters his means as times evolve.'" (Ibid., 390). Here mutually beneficial cooperation migrates from the economic to the security field.

A "community of common destiny" emerges from this discourse (compare the narrative of "community of shared future for human beings" in Resolution A/HRC/37/L.36).

Asia is a region of great diversity. The countries differ in size, wealth, and strength. They vary in historical and cultural traditions as well as social systems, and have different security interests and aspirations. However, we are all part of the same Asian family. With our interests and security so closely intertwined, we will sink or swim together, and we are increasingly becoming a community of common destiny. (Ibid., 390-391).

How might this "community of common destiny" be bound? It is bound up by principles. "Security must be equal. . . . Security must be inclusive. . . . Comprehensive security means upholding security in both traditional and non-traditional fields . . . .[to adopt] a multi-pronged and holistic approach." (Ibid., 391). This is to be accomplished through the application of a quite specific principle of cooperation (one that echoes as well through Resolution A/HRC/37/L.36).

Cooperative security means promoting the security of both individual countries and the region as a whole through dialogue and cooperation. As the proverb goes, 'Strength does not come from the muscles in the arms, but form the unison of the heart.' We should engage in sincere and in-depth dialogue and communication. . . . We should expand the scope and means of cooperation and promote peace and security through cooperation." (Ibid., 392).

Built into the concept of cooperation and communication is also that of sustainability. Sustainability, in turn, reinforces the Marxist notion of leading through economic development rather than through the construction of discursive spaces for the masses without the guide of vanguard leadership. ""We need to focus on development, zealously improve people's lives and narrow the wealth gap so as to cement the foundation of security." (Ibid., 393). Thus the inextricable interlinking of development, cooperation, security and a human rights measured by the improvement of people's lives, the measurement of which must, as in all matters, be contextually derived. With this in mind it is easier to understand the context in Mr. Xi's exhortation to his audience: "Let us work together to realize the Asian dream of lasting peace and common development, and make a greater contribution to advancing the noble cause of peace and the development of mankind." Here is the thrust of Resolution A/HRC/37/L.36 in its essence.

And the foundational source of the insight is again revealed: "As a Chinese saying goes, 'For a tree to grow tall, a strong and solid root is essential; for a rive to reach far, an unimpeded source is necessary.'" (Ibid., 393). Of course that insight can be the subject of some engagement; it is as powerful to consider the inverse of the Chinese saying quoted by Mr. Xi. How would one approach the issues if in fact one drew from the inverted saying in this way: for the roots to continue to build a strong network a vigorous mechanism for acquiring nutrients from the sun and rain is necessary; for an unimpeded source to remain in harmony with its surroundings, a fat river is necessary. The clash of those two sayings may well mirror the clash of approaches to international engagement and especially to the narrative structures of approaches to human rights. That, in metaphorical terms will be the basis of the conflict of narrative between the new approach built into Resolution A/HRC/37/L.36 and the historical approaches of the human rights built into the contemporary Western narrative.

These, then, are the refinements then built into the 19th CPC Congress Report delivered in October 2017 by Xi Jinping as a core element of Mr. Xi's "Thought on Socialism with Chinese Characteristics for a New Era and the Basic Policy" (Part III of the CPC Congress Report).

13. Promoting the building of a community with a shared future for mankind

The dream of the Chinese people is closely connected with the dreams of the peoples of other countries; the Chinese Dream can be realized only in a peaceful international environment and under a stable international order. We must keep in mind both our internal and international imperatives, stay on the path of peaceful development, and continue to pursue a mutually beneficial strategy of opening up. We will uphold justice while pursuing shared interests, and will foster new thinking on common, comprehensive, cooperative, and sustainable security. We will pursue open, innovative, and inclusive development that benefits everyone; boost cross-cultural exchanges characterized by harmony within diversity, inclusiveness, and mutual learning; and cultivate ecosystems based on respect for nature and green development. China will continue its efforts to safeguard world peace, contribute to global development, and uphold international order.

The key terms in Resolution A/HRC/37/L.36 appear in its context with Chinese characteristics especially in Part XII of the 19th CPC Report, "XII. Following a Path of Peaceful Development and Working to Build a Community with a Shared Future for Mankind" (full text set out below these remarks). Here is the essence.

The Communist Party of China strives for both the wellbeing of the Chinese people and human progress. To make new and greater contributions for mankind is our Party's abiding mission. . . .

China will continue to hold high the banner of peace, development, cooperation, and mutual benefit and uphold its fundamental foreign policy goal of preserving world peace and promoting common development. . . .

We call on the people of all countries to work together to build a community with a shared future for mankind, to build an open, inclusive, clean, and beautiful world that enjoys lasting peace, universal security, and common prosperity.. . .

We respect the right of the people of all countries to choose their own development path. We endeavor to uphold international fairness and justice, and oppose acts that impose one's will on others or interfere in the internal affairs of others as well as the practice of the strong bullying the weak.. . .

China adheres to the fundamental national policy of opening up and pursues development with its doors open wide. China will actively promote international cooperation through the Belt and Road Initiative. In doing so, we hope to achieve policy, infrastructure, trade, financial, and people-to-people connectivity and thus build a new platform for international cooperation to create new drivers of shared development.. . .

China follows the principle of achieving shared growth through discussion and collaboration in engaging in global governance. China stands for democracy in international relations and the equality of all countries, big or small, strong or weak, rich or poor. China supports the United Nations in playing an active role in international affairs, and supports the efforts of other developing countries to increase their representation and strengthen their voice in international affairs.

These are consistent with the insights developed earlier by Mr. Xi. The notion of mutually beneficial cooperation appears across the field of international activity, including in the relations with Hong Kong and Macao ("We will give priority to the development of the Guangdong-Hong Kong-Macao Greater Bay Area, cooperation between Guangdong, Hong Kong, and Macao, and regional cooperation in the pan-Pearl River Delta, thus fully advancing mutually beneficial cooperation between the mainland and the two regions.").

And thus Resolution A/HRC/37/L.36. Here at last we can see the movement of the concept of "mutually beneficial cooperation" from the economic and security fields to that of the related field of international human rights. The modalities are the same--the object is different though related to the others. For a vision that grounds the attainment of human happiness in the progress toward economic, social, and cultural harmony, it makes perfect sense to focus on the mechanisms of leadership driven cooperation of mutual benefit that leads from the economic and cultural to the political and civil--but that which does that in ways that are contextually driven. What then remains of the universal and indivisible catalogue of human rights--context and principle itself. Eventually, Leninist theory understands, all roads lead to the same ends--a historical determinism built into the bones of both Marxism and Leninism. In that sense the great principles matter. But principle does not require discipline and orthodoxy among states, just contextually driven commitment. And that appears to be the essence of Resolution A/HRC/37/L.36 as it quite correctly, from a Leninist international perspective, draws together the modalities of leadership in the economic, social, security and cultural fields within the umbrella of human rights narratives.

Delivered at the 19th National Congress of the Communist Party of China October 18, 2017

Xi Jinping

* * *

XII. Following a Path of Peaceful Development and Working to Build a Community with a Shared Future for Mankind

The Communist Party of China strives for both the wellbeing of the Chinese people and human progress. To make new and greater contributions for mankind is our Party's abiding mission.

China will continue to hold high the banner of peace, development, cooperation, and mutual benefit and uphold its fundamental foreign policy goal of preserving world peace and promoting common development. China remains firm in its commitment to strengthening friendship and cooperation with other countries on the basis of the Five Principles of Peaceful Coexistence,1 and to forging a new form of international relations featuring mutual respect, fairness, justice, and win-win cooperation.

The world is undergoing major developments, transformation, and adjustment, but peace and development remain the call of our day. The trends of global multi-polarity, economic globalization, IT application, and cultural diversity are surging forward; changes in the global governance system and the international order are speeding up; countries are becoming increasingly interconnected and interdependent; relative international forces are becoming more balanced; and peace and development remain irreversible trends.

And yet, as a world we face growing uncertainties and destabilizing factors. Global economic growth lacks energy; the gap between rich and poor continues to widen; hotspot issues arise often in some regions; and unconventional security threats like terrorism, cyber-insecurity, major infectious diseases, and climate change continue to spread. As human beings we have many common challenges to face.

Our world is full of both hope and challenges. We should not give up on our dreams because the reality around us is too complicated; we should not stop pursuing our ideals because they seem out of our reach. No country can address alone the many challenges facing mankind; no country can afford to retreat into self-isolation.

We call on the people of all countries to work together to build a community with a shared future for mankind, to build an open, inclusive, clean, and beautiful world that enjoys lasting peace, universal security, and common prosperity. We should respect each other, discuss issues as equals, resolutely reject the Cold War mentality and power politics, and take a new approach to developing state-to-state relations with communication, not confrontation, and with partnership, not alliance. We should commit to settling disputes through dialogue and resolving differences through discussion, coordinate responses to traditional and non-traditional threats, and oppose terrorism in all its forms.

We should stick together through thick and thin, promote trade and investment liberalization and facilitation, and make economic globalization more open, inclusive, and balanced so that its benefits are shared by all. We should respect the diversity of civilizations. In handling relations among civilizations, let us replace estrangement with exchange, clashes with mutual learning, and superiority with coexistence. We should be good friends to the environment, cooperate to tackle climate change, and protect our planet for the sake of human survival.

China remains firm in pursuing an independent foreign policy of peace. We respect the right of the people of all countries to choose their own development path. We endeavor to uphold international fairness and justice, and oppose acts that impose one's will on others or interfere in the internal affairs of others as well as the practice of the strong bullying the weak.

China will never pursue development at the expense of others' interests, but nor will China ever give up its legitimate rights and interests. No one should expect us to swallow anything that undermines our interests. China pursues a national defense policy that is in nature defensive. China's development does not pose a threat to any other country. No matter what stage of development it reaches, China will never seek hegemony or engage in expansion.

China has actively developed global partnerships and expanded the convergence of interests with other countries. China will promote coordination and cooperation with other major countries and work to build a framework for major country relations featuring overall stability and balanced development. China will deepen relations with its neighbors in accordance with the principle of amity, sincerity, mutual benefit, and inclusiveness and the policy of forging friendship and partnership with its neighbors. China will, guided by the principle of upholding justice while pursuing shared interests and the principle of sincerity, real results, affinity, and good faith, work to strengthen solidarity and cooperation with other developing countries. We will strengthen exchanges and cooperation with the political parties and organizations of other countries, and encourage people's congresses, CPPCC committees, the military, local governments, and people's organizations to engage in exchanges with other countries.

China adheres to the fundamental national policy of opening up and pursues development with its doors open wide. China will actively promote international cooperation through the Belt and Road Initiative. In doing so, we hope to achieve policy, infrastructure, trade, financial, and people-to-people connectivity and thus build a new platform for international cooperation to create new drivers of shared development.

China will increase assistance to other developing countries, especially the least developed countries, and do its part to reduce the North-South development gap. China will support multilateral trade regimes and work to facilitate the establishment of free trade areas and build an open world economy.

China follows the principle of achieving shared growth through discussion and collaboration in engaging in global governance. China stands for democracy in international relations and the equality of all countries, big or small, strong or weak, rich or poor. China supports the United Nations in playing an active role in international affairs, and supports the efforts of other developing countries to increase their representation and strengthen their voice in international affairs. China will continue to play its part as a major and responsible country, take an active part in reforming and developing the global governance system, and keep contributing Chinese wisdom and strength to global governance.

Comrades,

The future of the world rests in the hands of the people of all countries; the future of mankind hinges on the choices they make. We, the Chinese, are ready to work with the people of all other countries to build a community with a shared future for mankind and create a bright tomorrow for all of us.

Reaffirming the Universal Declaration of Human Rights and the Vienna Declaration and Programme of Action, and recalling all relevant international human rights treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights,

Recalling previous resolutions adopted by the General Assembly and the Human Rights Council on international cooperation in the field of human rights,

Reaffirming that all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing, and that all human rights must be treated in a fair and equal manner, on the same footing and with the same emphasis,

Reaffirming also that all human rights derive from the dignity and worth inherent in the human person and that the human person is the central subject of human rights and fundamental freedoms, and consequently should be the principal beneficiary and should participate actively in the realization of these rights and freedoms,

Reaffirming further that, while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, all States, regardless of their political, economic and cultural systems, have the duty to promote and protect all human rights and fundamental freedoms,

Reaffirming that the work of the Human Rights Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development,

Acknowledging the important role that mutually beneficial cooperation plays among all relevant stakeholders in promoting and protecting all human rights in an increasingly interrelated world,

Emphasizing the responsibility of all States, in conformity with the Charter of the United Nations, to develop and encourage respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,

Emphasizing also that genuine dialogue and cooperation in the field of human rights should be constructive and based on universality, indivisibility, non-selectivity, non- politicization, equality and mutual respect, with the aim of promoting mutual understanding, expanding common ground and strengthening constructive cooperation, including through capacity-building and technical cooperation,

Considering that international cooperation in the field of human rights, in conformity with the purposes and principles set out in the Charter and international law and based on the principles of cooperation and genuine dialogue, makes an effective and practical contribution to preventing violations of human rights and fundamental freedoms and strengthening the capacity of States to comply with their human rights obligations for the benefit of all human beings,

Recognizing the importance of technical assistance and capacity-building provided in consultation with, and with the consent of, the States concerned in promoting mutually beneficial cooperation in the field of human rights,

Recognizing also the role of the universal periodic review in, inter alia, promoting the universality, interdependence, indivisibility and interrelatedness of all human rights, establishing a cooperative mechanism based on objective and reliable information and on interactive dialogue, and ensuring universal coverage and equal treatment of all States in contributing to the promotion and protection of human rights and mutually beneficial cooperation,

Recognizing further that dialogue among religions, cultures and civilizations in the field of human rights could contribute greatly to the enhancement of international cooperation in this field,

Recognizing the importance of fostering international relations based on mutual respect, fairness, justice and mutually beneficial cooperation, with the aim of building a community of shared future for human beings, in which human rights are enjoyed by all,

1. Calls upon all States to uphold multilateralism and to work together to promote mutually beneficial cooperation in the field of human rights, and encourages other stakeholders, including international and regional organizations and non-governmental organizations, to contribute actively to this endeavour;

2. Reiterates the important role of technical assistance and capacity-building in promoting and protecting human rights, calls upon States to strengthen human rights technical assistance and capacity-building through mutually beneficial cooperation, upon the request of and in accordance with the priorities set by the States concerned, and welcomes in this regard North-South, South-South and triangular cooperation;

3. Emphasizes the importance of the universal periodic review as a mechanism based on cooperation and constructive dialogue with the objective of, inter alia, improving the situation of human rights on the ground and promoting the fulfilment of the human rights obligations and commitments undertaken by States, and calls upon all States and relevant stakeholders to participate constructively in it;

4. Invites relevant United Nations human rights mechanisms and procedures to continue to pay attention to the importance of mutually beneficial cooperation in promoting and protecting all human rights;

5. Requests the Human Rights Council Advisory Committee to conduct a study on the role of technical assistance and capacity-building in fostering mutually beneficial cooperation in promoting and protecting human rights, and to submit a report thereon to the Human Rights Council before its forty-third session.

In a resolution (A/HRC/37/L.36) on promoting mutually beneficial cooperation in the field of human rights,
adopted by a vote of 28 in favour, 1 against and 17 abstentions, the
Council calls upon all States to uphold multilateralism and to work
together to promote mutually beneficial cooperation in the field of
human rights; and requeststhe Human Rights Council Advisory
Committee to conduct a study on the role of technical assistance and
capacity-building in fostering mutually beneficial cooperation in
promoting and protecting human rights, and to submit a report thereon
to the Human Rights Council before its forty-third session.

China, introducing L.36, said the resolution was of mutual benefit
for the lofty goals for all peoples and Member States of the United
Nations. It was in line with all documents, including the Vienna
Declaration and Programme for Action, which called for strong
cooperation and dialogue among States to the promotion and protection
of human rights. All peoples lived on the same Earth and faced common
challenges. China had co-sponsored this resolution for mutually
beneficial cooperation in promoting and protecting human rights. It
strongly believed that the Human Rights Council should be guided by the
principles of universality, impartiality, objectivity and
non-selectivity for greater cooperation, capacity building, and
technical assistance, in order to build a new type of international
relations, which reflected the times. The contributions of China and
other countries to global human rights governance were in this
direction. China had, over the past few weeks, done its utmost to
consult and integrate modifications to the draft resolution. It
thanked all parties who had demonstrated a cooperative attitude. The
oral amendments to this effect would be distributed by the Council.
China hoped that this draft resolution would be adopted by consensus,
and would regret if any country would oppose it just because it was put
forth by China. China hoped countries would refrain from the
“zero-sum” game and hoped that all Member States would participate in
consensus.

Pakistan, in a general comment, said the draft resolution advocated
the values of cooperation and constructive engagement in the promotion
of human rights. Not only did it take into account the importance of
technical cooperation but also the principles of universality,
impartiality, and non-selectivity, based on dialogue and political
independence. Earnest implementation of such principles could lead to
the valuable tangible goals that the United Nations had set themselves.
Pakistan would therefore support the resolution.

United States, in a general comment, said it was clear that China
was attempting through this resolution to weaken the United Nations
human rights system and the norms underpinning it. The “feel good”
language about “mutually beneficial cooperation” was intended to
benefit autocratic States at the expense of people whose human rights
and fundamental freedoms all were obligated, as States, to respect.
For these reasons, the United States was calling for a vote and would
vote against this resolution, and encouraged all other countries not to
support this resolution.

Cuba, in a general comment, said that it understood the benefits of
mutually beneficial cooperation in the field of human rights as based
on the principles of equality, non-politicization and non-selectivity.
It would help expand the common ground of understanding and it would
reinforce cooperation through technical assistance and capacity
building. It would help build a future community in which respect for
all human rights was shared by all human beings.

South Africa, in a general comment, supported the draft resolution as
it contained important principles it believed in and as it encouraged
an approach key to the Council’s mandate to operate in a cooperative
manner. The draft resolution affirmed issues of importance to South
Africa in a context where resolutions of crucial importance reflected
the aspirations of ordinary people ranging from access to medicines,
the right to food, and the right to peace. They could not quarrel with a
resolution which spoke about key issues of importance to the majority
of the poor globally. That happened too often in the Council on the
needs of the vulnerable, yet those were all important issues as
everyone believed in the indivisibility of all human rights. The
notion of cooperation being mutually beneficial also importantly
denoted fundamental and universally agreed principles being upheld and
respected among partners engaging in cooperation and was enshrined in
the founding mandate of the Council. All programmes of cooperation,
capacity building and technical assistance should fundamentally further
the realization of human rights as laid down in the Universal
Declaration of Human Rights.

Venezuela, speaking in a general comment, recognized the important
role played by international cooperation in the area of human rights,
including the right to development. Genuine dialogue, guided by the
principles of objectivity, respect for national sovereignty and
non-politicization as well as non-interference in the area of human
rights, had to be carried out in order to strengthen constructive
elements of technical assistance and capacity building. China was
thanked for its sponsorship and constructive role and flexibility
demonstrated during the drafting process.

Egypt, speaking in a general comment, noted that article 1 of the
United Nations Charter emphasized the importance of international
cooperation in the area of human rights. Such cooperation had to be
based on reciprocity and mutual respect, in the same vein that L.36
promoted international cooperation. The study requested by L.36 served
to allow for informed technical assistance and capacity building
efforts.

Australia, in an explanation of the vote before the vote, said it had
negotiated in good faith with drafters of L.36, but regretted that
none of their concerns had been addressed. L.36 lacked balance and it
focused overly on the relations between States instead of the rights of
individuals, as emphasized in the Vienna Declaration and Programme of
Action. Words and concepts such as mutually beneficial cooperation and
community of shared future should not be used as they had not been
defined and were vague and ambiguous. The call for technical
assistance and capacity building contained in the text was
unappropriated. While technical assistance and capacity building were
vital, those instruments were used to promote human rights of
individuals, but the draft resolution did not emphasize the importance
of transparency and monitoring. The important role of other
stakeholders such as national human rights institutions were not
addressed. Finally, there was a concern that L.36 might seek to reform
the Council and its mandate.

Mexico, in an explanation of the vote before the vote, recognized the
efforts of China to hold open negotiations and the very hard work of
the Chinese delegation. China had addressed many of the concerns of
Mexico, such as recognition that human rights were not only a cause.
However, significant omissions remained, notably with respect to the
work of human rights defenders and civil society. Those were notable
omissions and the text contained unclear concepts, such as the call to
build a community for a shared future. However, Mexico attached
importance to international cooperation and would thus vote in favour of
the draft resolution.

Slovakia, in an explanation of the vote before the vote on behalf of
the European Union, believed that it was crucially important that all
Council initiatives enhanced all human rights. Initiatives needed to
demonstrate clearly that they were in the service of promoting human
rights and preventing human rights violations. International
cooperation was one way to achieve that objective. Benefits went to
individual human rights holders. The draft resolution did not go far
enough and it used concepts that were at odds with those set out in the
United Nations Charter and other key agreements. There was no clear
recognition that human rights violations should be addressed even when
there was no cooperation with concerned countries. The European Union
could thus not support the draft resolution.

Mongolia, in an explanation of the vote before the vote, reaffirmed
its commitment to ensuring the enjoyment of human rights as the basis
for democratic and open societies. It was committed to work toward the
full implementation of all rights, civil and political, economic,
social and cultural, and the right to development. Any cooperation in
the field of human rights was beneficial if it enhanced human rights
without any compromise. Such cooperation would be beneficial only if
it expanded the existing human rights system, and thus Mongolia would
support the draft resolution.

Japan, in an explanation of the vote before the vote, appreciated the
efforts by China for full cooperation and constructive engagement on
the draft resolution. Japan was of the opinion that a couple of terms
in the oral revisions, including “building a community” and “mutually
beneficial cooperation” were not widely used in international
cooperation. They were not suitable for a human rights resolution as
they were not widely accepted definitions. The individual was the
central subject for human rights. Japan had considered it appropriate
to delete OP5 which requested the High Commissioner to conduct a study
and submit a report on these two terms, and had submitted a proposal to
this effect. The proposal however had not been reflected in the oral
revision. Having said that, Japan would support further efforts on this
topic, but would abstain from the draft resolution as orally revised.

Switzerland, in an explanation of the vote before the vote,
appreciated the efforts made by China to conduct open consultations on
the draft resolution. Some considerations had been taken into account,
however central concerns of Switzerland had not been addressed. In
particular, Switzerland opposed the vague and ambiguous language which
weakened the fundamental principles of human rights. This language
would jeopardize the significant progress made, in particular in
commemorating the seventieth anniversary of the Universal Declaration of
Human Rights. Switzerland appreciated constructive cooperation
internationally as a means to the promotion and protection of human
rights. At the same time, it recalled that human rights mandates had
to act where human rights violations were present and to prevent and
promptly intervene in crises. Human rights protection contributed to
peace stability in all countries. The United Nations mechanisms were
carrying out their mandates in conformity with international law. It
highlighted the crucial participation of civil society in the human
rights mechanisms, without being subject to reprisals. As a result,
Switzerland would abstain from the draft resolution.

Republic of Korea, in an explanation of the vote before the vote,
appreciated the efforts of China to accommodate different views.
However, it was concerned that the term “mutually beneficial
cooperation” was not understood, especially in the area of the
promotion of human rights, so the Republic of Korea would abstain from
this draft resolution.

The Council then adopted the draft resolution by a vote of 28 in favour, one against and 17 abstentions.

(Reuters) - China and the United States clashed on Friday at the United Nations, where the U.S. delegation rejected a resolution brought by Beijing that it said sought to glorify Xi Jinping's "win-win" agenda and subordinated human rights to development or trade.

The dispute is a sign of how a disagreement between Washington and Beijing over trade may be spilling over into other international arenas.

It came a day after U.S. President Donald Trump announced plans for tariffs on up to $60 billion in Chinese goods, sparking a call from Beijing to "pull back from the brink".

China led a resolution at the U.N. Human Rights Council - its second-ever in nearly 12 years - that calls for "mutually beneficial cooperation". Senior Chinese diplomat Jiang Duan urged states to adopt the text, whose co-sponsors included Pakistan and Egypt, by consensus.

But U.S. diplomat Jason Mack called for a vote on China's resolution, which was then easily adopted by the 47-member forum. The U.S. delegation cast the only "no" vote, while 28 states voted in favor, including China, and 17 abstained with one delegation absent.

"It is clear that China is attempting through this resolution to weaken the U.N. human rights system and the norms underpinning it," Mack said.

"The 'feel good' language about mutually beneficial cooperation is intended to benefit autocratic states at the expense of people whose human rights and fundamental freedoms we are all obligated as states to respect," he said.

The United States would not participate in attempts to weaken states' obligations to uphold fundamental freedoms "or to subordinate them to other aims such as those related to development or trade", he added.

Mack, referring to Chinese spokespeople, added: "They have been clear about their intent to glorify their head of state by inserting his thoughts into the international human rights lexicon."

"A true example of cooperation in promoting and protecting human rights would be for China to release citizens it has wrongly detained or to protect the right of religious minorities

to freely practice their religion," he said.

Australia, Britain, Japan, and Switzerland were among those abstaining, although many envoys spoke against the text. Australia said it "lacks balance, and focuses only on relations between states instead of individual rights," while Japan said it was "not suitable" and Switzerland criticized its "vague and invidious language".

John Fisher, Geneva director of Human Rights Watch, chastised states for merely abstaining. "How can defenders in China have confidence you’ll stand with them, if you won’t stand against a resolution you know is wrong?" he said in a tweet.

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.